T.L.S. v. Lauderdale County Department of Human Resources

119 So. 3d 431, 2013 WL 203525, 2013 Ala. Civ. App. LEXIS 23
CourtCourt of Civil Appeals of Alabama
DecidedJanuary 18, 2013
Docket2111073 and 2111074
StatusPublished
Cited by10 cases

This text of 119 So. 3d 431 (T.L.S. v. Lauderdale County Department of Human Resources) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
T.L.S. v. Lauderdale County Department of Human Resources, 119 So. 3d 431, 2013 WL 203525, 2013 Ala. Civ. App. LEXIS 23 (Ala. Ct. App. 2013).

Opinions

MOORE, Judge.

T.L.S. (“the mother”) appeals from separate judgments of the Lauderdale Juvenile Court (“the juvenile court”) that terminated her parental rights to M.S. and K.S. (hereinafter referred to collectively as “the children”).

Procedural Background

In May 2009, after a teacher reported to the Lauderdale County Department of Human Resources (“DHR”) that K.S. had visible marks about his head and neck, DHR began investigating the mother for physical abuse. DHR instituted a safety plan at that time pursuant to which the mother’s mother assumed physical custody [434]*434of the children and DHR began providing parenting services to the mother leading toward her reunification with the children. On August 28, 2009, DHR completed its investigation and “indicated” the mother for physically abusing K.S.1 On September 14, 2009, D.S. (“the father”) received custody of the children.

While in the custody of the father, M.S. revealed that she had been sexually molested by P.W., her stepfather. Ke.S., the children’s older sister, also disclosed that she had been sexually abused by P.W. K.S. indicated that he had witnessed the sexual abuse of his oldest sister and that D.M., another adult male relative, had sexually abused him. DHR investigated those allegations and filed “indicated” reports against P.W. and D.M. in 2010.2

On June 24, 2010, the mother was convicted of violating § 26-15-3, Ala.Code 1975.3 She received a 36-month prison sentence, which was suspended, and she was placed on probation. Two months later, the father informed DHR that he could no longer provide care for the children because of their emotional and behavioral problems, which, he said, endangered his other two children. At that point, DHR placed the children in separate therapeutic foster-care homes. DHR continued providing services to the mother, but DHR eventually determined that, because the mother had been convicted of child abuse and had not demonstrated an ability to meet the special needs of the children, it would discontinue family-reunification efforts and pursue termination of the mother’s parental rights.

DHR filed petitions to terminate the mother’s parental rights to the children on December 9, 2011. Following a trial on June 8, 2012, the juvenile court entered separate judgments terminating the mother’s parental rights to M.S. and K.S., respectively, on June 19, 2012. The mother appealed to this court on June 29, 2012.4

Analysis

The mother first argues that the juvenile court failed to use reasonable efforts to rehabilitate her and to reunite her with the children. DHR counters that, because the mother was convicted of child abuse, the juvenile court had no duty to use reasonable efforts to rehabilitate the mother and to reunite the family.

When a child is removed from the home of the custodial parent and placed in foster care, a juvenile court must make specific findings within 60 days of the removal regarding “whether reasonable efforts have been made to prevent removal of the child or whether reasonable efforts were not required to be made.” § 12-15-312(a)(2), Ala.Code 1975 (emphasis added). Within 12 months of foster-care placement, the juvenile court must document whether [435]*435reasonable efforts have been made to finalize the existing permanency plan. § 12-15-312(a)(3), Ala.Code 1975. “Reasonable efforts” refers to, among other things, “efforts ... to make it possible for a child to return safely to the home of the child.” § 12-15-312(b), Ala.Code 1975. Reasonable efforts are not required if a parent has subjected a child or a sibling of the child to “aggravating cireumstance[s],” such as torture, and the risk of further abuse or neglect is too high to permit the child to be returned home. § 12-15-312(c)(1), Ala.Code 1975.

In this case, the children were removed from the home of the mother in May, 2009 but they were not placed into foster care until August 2010. Based on the statutory deadlines, the juvenile court had until October 2010 to determine whether reasonable efforts to rehabilitate the mother and to reunite the family were required. If the permanency plan called for family reunification, the juvenile court had until August 2011 to specify whether reasonable efforts had been made to achieve that goal. Thus, any issues as to whether reasonable efforts were required and, if required, whether reasonable efforts to reunite the family had been made, should have already been decided before DHR filed its petitions to terminate the mother’s parental rights. If that had occurred, the doctrines of collateral estoppel or res judicata would have barred the relitigation of those issues. See F.V.O. v. Coffee Cnty. Dep’t of Human Res., [Ms. 2110398, Dec. 7, 2012] — So.3d -(Ala.Civ.App.2012).

The record does not contain any of the orders of the juvenile court entered before December 9, 2011. In its petitions to terminate the mother’s parental rights, DHR averred that it had used reasonable efforts to reunite the family; DHR did not allege that it had been excused from those efforts. During the trial, when the mother introduced evidence tending to question the reasonableness of the efforts to reunite the family, DHR did not object that the issue had already been determined. DHR also did not move the juvenile court to take judicial notice of any of its previous orders. In its final judgments, the juvenile court found that DHR had used “fair and reasonable efforts toward reunification of the minor children] with [their] parents ... and that such efforts had not been successful.” The record indicates that the parties and the juvenile court treated the issues surrounding reasonable efforts as if they had not been previously judicially determined. Because the parties litigated those issues and the juvenile court adjudicated those issues, we find that those issues can be considered in this appeal. See Gatlin v. Joiner, 31 So.3d 126 (Ala.Civ.App.2009).

As noted, DHR did not assert at any point during the trial that it did not have to use reasonable efforts to reunite the family. DHR raises that point for the first time in its brief to this court. An appellate court cannot consider an argument raised for the first time on appeal to reverse a judgment, but it can consider a new argument for affirming the judgment. See Verchot v. General Motors Corp., 812 So.2d 296, 305 (Ala.2001) (quoting Progressive Specialty Ins. Co. v. Hammonds, 551 So.2d 333, 337 (Ala.1989)) (“ ‘We can affirm a judgment on a basis not asserted to the trial court, and we can affirm a judgment if we disagree with the reasoning of the trial court in entering the judgment, as long as the judgment itself is proper.’ ”). That is so because a judgment can be affirmed on any valid legal ground, even one not considered by the trial court. See Ex parte CTB, Inc., 782 So.2d 188, 191 (Ala.2000). Hence, we must consider whether the circumstances dictate that no [436]*436reasonable efforts were required to be made by DHR pursuant to § 12 — 15—312(c).

At trial, DHR introduced evidence indicating that the mother had been convicted by the Lauderdale Circuit Court of violating § 26-15-3. That conviction served as prima facie evidence that the mother had “torture[d], willfully abuse[d], cruelly beat, or otherwise willfully maltreat[ed]” a child. § 26-15-3; see generally Durham v. Farabee,

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Bluebook (online)
119 So. 3d 431, 2013 WL 203525, 2013 Ala. Civ. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tls-v-lauderdale-county-department-of-human-resources-alacivapp-2013.